The Case of the Disappearing Plaintiffs

Robert Baxter et al vs. State of Montana

The ruling

Janet Murdock lived in Missoula with the four physicians, who, citing their
"professional obligation to relieve suffering," convinced a judge to
legalize assisted suicide in Montana. Where were they in Janet
Murdock's 'hour of need'?

In December, 2008, Montana District Court Judge Dorothy McCarter ruled that
Montana citizens who are competent and terminally ill have a legal right to
assisted suicide based on the State's constitutional recognition of individual
privacy and human dignity. The case was launched by Compassion and
Choices, a euthanasia/assisted suicide advocacy group. It is now under appeal, but the ruling
stands as the law of Montana pending review by the State Supreme Court.

Taking a strict view of the terms of the ruling, it authorizes physicians to
prescribe lethal medication for competent, terminally ill patients, but the
patients must self-administer the drug. If the ruling is affirmed by the
State Supreme Court, it is unlikely that the strict view will prevail in the
long term. It is more likely that, upon the request of a patient (or
legal proxy), someone other than the patient will be able to administer the
lethal prescription.

Commenting on the judgement, Project Advisor Dr. John
Fleming notes that it does not provide for situations in
which a patient is unable to ask for a prescription.
If the ruling stands, he thinks it likely that more
cases will be brought to determine the reach and scope of "assistance."
This could transform the purported "constitutional
right" to assisted suicide to a "constitutional right"
to direct, active euthanasia.

Implications for freedom of conscience

What warrants closer attention by those concerned about freedom of conscience in
health care is another aspect of the judgement. The court ruled that
the legal right to assisted suicide "necessarily incorporates the assistance of
his doctor, as part of a doctor-patient relationship, so that the patient can
obtain a prescription for drugs that he can take to end his own life, if and
when he so determines."

Given a competent terminal patient's right to determine
the time to end his life, in consultation with his physician, the method
of effecting the patient's death with dignity would require the
assistance of his medical professional. The physician-patient
relationship would enable the terminal patient to consult with his
doctor as to the progress of the disease and the expected suffering and
discomfort, and would enable the doctor to prescribe the most
appropriate drug for life termination, leaving the ultimate timing and
decision up to the patient.

But for such a relationship, the patient would
increasingly become physically unable to terminate his life, thus
defeating his constitutional right to die with dignity. If the
patient were to have no assistance from his doctor, he may be forced to
kill himself sooner rather than later because of the anticipated
increased disability with the progress of his disease, and the manner of
the patient's death would more likely occur in a manner that violates
his dignity and peace of mind, such as by gunshot or by an otherwise
unpleasant method, causing undue suffering to the patient and his
family..1

The explanation offered by the court for the right to have
the assistance of a physician is essentially the same rationale advanced by
those who support physician involvement in other controversial procedures,
such as abortion,2 the amputation of healthy body parts3
or adult female circumcision.4

A claim that a patient has a legal right to the assistance
of a physician to commit suicide is uncomfortably close to a claim that
patients can force their physicians to participate in the procedure.
It is thus significant that Compassion and Choices seeks the repeal of a
federal protection of conscience regulation. The regulation, it
claims, "thwart[s] good medical care for the sake of religious zealotry."5
Moreover, since the Baxter ruling, spokesmen for the group have
repeatedly stated that physician assisted suicide is a "constitutional
right" in Montana, and they have emphasized that the ruling has created a
"new legal landscape" in the state.6

Nonetheless, to say that a patient has a legal right to
have assistance is not the same as saying that a patient has a legal
right to demand it, or to demand it from a particular individual. The
court appears to have recognized this distinction, which is implicit in its
statement that the legislature can enact a law "that excludes physicians who
do not wish to participate" and can adopt "legislation and guidelines" to
protect objecting physicians.7

Moreover, even if one accepts the claim that a legal right
to assisted suicide can be found in Montana's constitution, the ruling can
be criticized as overly broad. It unnecessarily conscripts a class of
persons (physicians and health care providers) as suicide assistants.
If the goal is to ensure that a patient can have a quick and painless death
with lethal medication, it does not follow that the participation of
physicians or health care workers is required. All that is necessary
is knowledge and competence in prescribing lethal medication.

Immediate consequences

The two patients who were
plaintiffs in the case were 75 year old Robert Baxter and 53 year old Steven
Stoelb. In launching the complaint in October, 2007, Compassion and
Choices said they were "approaching the end of their lives and have no
reasonable prospect of recovery." According to Compassion and Choices,
Baxter was "terminally ill with lymphocytic leukemia" and Stoelb "terminally
ill with Ehlers Danlos Syndrome (EDS)."8

However, the Baxter decision did not lead to the assisted suicide of either
patient. Robert Baxter succumbed to his illness in his sleep the day the ruling was issued.9 Stoelb withdrew as plaintiff during the course of the hearings because "his
medical condition presented a contested issue of material fact."10

Since EDS is not classed as a terminal illness (though it is incurable,
and one form of it can have fatal complications)11 it
appears that Stoelb withdrew to avoid examination of the claims made about
the nature of his illness or the prospects for its palliation.
Nonetheless, Compassion and Choices continues to refer to him as a "terminal
patient" and represent him as a plaintiff.12

The disappearing plaintiffs

The four physicians have impressive
credentials. For example: Dr. Stephen Speckart was involved in
founding a hospice and served as a hospice board member and medical
director. He also developed a local chapter of Physicians for Social
Responsibility. Dr. Autio has served as medical director of nursing
homes. Dr. Risi is a reviewer for professional journals and part of
the clinical faculty of the University of Montana School of Pharmacy.
C. Paul Loehnen, MD, has practised medicine for over forty years and has
been Clinical Associate Professor of Medicine and the University of
Washington in Seattle since 1987.

In their affidavits the four physician plaintiffs recounted their
sometimes harrowing experiences in treating terminally ill patients.
Referring to competent, terminally ill patients who want to die in order to
avoid prolonged suffering, Dr. Loehnen, Dr. Autio and Dr. Risi stated that
their "professional obligation to relieve suffering" would sometimes dictate
that they assist such patients in hastening their deaths (or, as Dr. Risi
put it, "provide aid in dying"). Dr. Speckart was not as explicit,
affirming, instead, his professional obligation "to be sympathetic and
understanding of their terminal circumstances and try, within the law, to be
present and maximally supportive of the dying patient."

It is clear that in using the terms "hastening death", "aid in dying" and
being "maximally supportive of the dying patient," all four physicians were
referring to assisted suicide. All four stated that Montana's homicide
statutes had deterred them from providing the kind of "care" they believed
their patients needed.14 In virtually identical passages, their
affidavits each stated that the deterrent effect of Montana's homicide
statutes had sometimes resulted in "patients . . .dying tortured deaths."15

Turn now to the story of Janet Murdock, a 67 year old Massoula resident
with terminal ovarian cancer. Despite the Baxter ruling, her own
physician refused to give her a prescription for lethal medication. In
April, 2009, four months after winning the Baxter case, Steve Hopcraft and
Kathryn Tucker of Compassion and Choices held a press conference about
Murdock's situation.16

Hopcraft stated that they were authorized to speak on her behalf because she was
too weak to participate in the conference or do personal interviews.
He read a statement from Murdock:

I feel as though my doctors don't feel able to respect my decision to
choose aid in dying. Access to physician aid in dying would
restore my hope for peaceful, dignified death in keeping with my values
and beliefs. I have suffered so much, that I have considered
throwing myself into a snowbank to die of hypothermia. Does
Montana's medical community care more about anti-choice extremists who
may disapprove, or about people like me, who may suffer and be left to
an unbearably painful end of life?

The reason for calling the press conference, he explained, was the hope
"that Janet's appeal today for aid in dying will prompt a willing physician
to come forward and contact Compassion and Choices." Hopcraft said
that they would put willing physicians in touch with Murdock's family and
caregivers.

In fact, no Montana physician came forward. Janet Murdock "died of
physical deterioration caused by ovarian cancer" on 14 June, 2009.17
A Compassion and Choices news release announced her death:

. . . Murdock spent nearly two months trapped in a dying process,
which she found unbearable, and ultimately she brought the process to an
end by giving up food and fluid.18

According to the release, Murdock accelerated
her death by giving up food and fluids, which contributed to her misery in
her final days. It quoted Murdock's daughter, who asked if it was
"fair and right and moral, to stand by and watch someone die a death you
wouldn't want to wish on your worst enemy." A friend described her
death as "cruel and unusual punishment."19

Janet Murdock lived in Missoula, a city with a population of about
64,000.20

So did the four plaintiff physicians.

Janet Murdock lived in Missoula with the four physicians, who, citing their
"professional obligation to relieve suffering," convinced a judge to
legalize assisted suicide in Montana. Where were they in Janet
Murdock's 'hour of need'?

The question occurred to reporters covering the Compassion and Choices
news conference. Their exchanges with Tucker and Hopcraft are
transcribed below, with some commentary.

Dan Person, Bozeman Chronicle:

Q) Um, as I understand, there were four physicians that
were involved, uh, in the, in the Baxter, uh, lawsuit. Where,
where are, those, those physicians? Are they, are they hesitating on,
on, uh, practising, uh, this treatment?

Kathryn Tucker, Compassion and Choices

A) Well, you know, none of them provides care to
Janet Murdock, and so, um, you know, we don't know if she had been one
of their patients if they would feel comfortable. . .

If Compassion and Choices did not know how the plaintiff
physicians would have handled Murdock's request, it would seem that the
organization did not contact them before making the state-wide appeal.
In any case, Tucker later reneges on this point.

Kathryn Tucker (continuing)

. . .I mean obviously we know from their statements in
the lawsuit that they support patients such as Janet being empowered to
make this choice, and they were expressing their support for providing
that care if it were something they could do without fear of
prosecution. . .

In her comments preceding questions from reporters, Tucker
had made clear that physicians could prescribe lethal medications for
terminally ill, competent patients without fear of prosecution.

Kathryn Tucker (continuing)

It's important to get the word out to physicians that if
they are caring for dying patients and the patient wants to make this
choice that they, the physician can provide a prescription to that
patient without fear of criminal prosecution.

In response to later questions she explained that this would
be the case even if the state Supreme Court reversed the lower court ruling.
She repeatedly emphasized that physicians who wrote lethal prescriptions for
terminally ill patients were legally "safe" in so doing.

Kathryn Tucker (continuing)

. . .So, you know, certainly if she were among their
patients I would feel confident saying they would provide this care to
her. . .

Compare this to her earlier assertion that she did not know
"if they would feel comfortable."

. . . Um, she's not one of their patients. And so,
you know that's part of the problem, is it's very difficult late in an
illness to transfer care. Uh, so, you know, that's why I'm
encouraging that patients start these conversations early if it's clear
that their provider would not be willing, that they begin the process of
transferring care when they're still relatively well, uh, so that this
problem doesn't arise. . .

Three points are relevant here.

It is not clear that a complete transfer of care would have been
required, since the only thing Murdock needed was a prescription for a
lethal drug.

The fact that Compassion and Choices was appealing to any
Montana physician to "come forward" suggests that transfer of care was
not, in fact, an obstacle. At any rate, it could not have been an
insurmountable obstacle. Indeed, it is reasonable to believe that
it would have been less an obstacle for any of the four plaintiff
physicians living in Missoula than for doctors living elsewhere in the
state.

Transfer of care from an objecting physician is expressly provided
for in euthanasia and assisted suicide statutes in Washington State,
Oregon and in Belgium.21

A reporter returned to the issue of transfer of care later in the
conference:

Unidentified reporter:

Q) The, the request for other, for physicians to
step forward. Uh, one of you earlier said that it's difficult at
this stage of a terminal illness to transfer care.

Kathryn Tucker, Compassion and Choices

A) Yes.

Unidentified reporter:

Q) How difficult? I mean, what is, what is the
problem there?

Kathryn Tucker, Compassion and Choices

A) Well, I mean typically, um, you know a patient
like Janet Murdock as you've heard, is very, very weak, has extremely
limited ability to effectuate any kind of change. Even have a
conversation. Um, and so, you know, going about the business of
identifying, locating, interviewing a new physician, um, and then
transferring care, you know that's a very overwhelming thing for
someone who's dying. . .

It would appear, nonetheless, that Murdock (or someone
acting for her) was able to contact Compassion and Choices, evaluate their
services and bona fides, make arrangements for the public appeal, and
authorize Tucker and Hopcraft to speak for her. Presumably, Compassion
and Choices would assist with "the business of identifying, locating,
interviewing a new physician" etc.

Kathryn Tucker (continuing)

. . . There's also, you know, a lot of, um, loyalty
that's developed over the course of care and I think a patient is
typically quite reluctant to make an abrupt change in care when they're
ill. So you have all of those practical realities that make it
very very hard.

While this may be true, it is also true that Murdock's statement evinces
a sense of betrayal rather than loyalty.

It is very difficult to believe that the four plaintiff physicians did
not respond to Murdock's appeal simply because of some difficulty in
transfer of care. In fact, the next question and answer suggest that
the alleged difficulties in 'transfer of care' was merely a lame excuse:
perhaps, even, a smokescreen.

Unidentified reporter:

Q) So, the request for physicians to come forward, is,
is to what, to serve what purpose?

Kathryn Tucker, Compassion and Choices

A) Well, yes. I mean certainly if a
physician came forward and identified themselves, um, to Compassion and
Choices and we put that physician in touch with the patient, or if the
physician reached out to the patient directly it's possible that that
could be accomplished. Um, and so we do hope that that will happen
here. . .

In other words, all a willing physician had to do was make a
phone call. And the four physician plaintiffs could have made that
call without long distance charges. This continued to puzzle one of
the reporters:

Dan Person, Bozeman Chronicle:

Q) Um, uh, Katherine . . . I, I guess I, I'm still unclear on
why, um, why there aren't at least four physicians now coming forward
um, uh, to offer Montanans this care, and then a, a second question
that, that that came to me, and this might be belying my, my ignorance
of the medical profession, but wh . . . is, is the medication available
in Montana pharmacies now, that, that they would be prescribing?

An interviewer who asks two questions at once gives his subject the
opportunity to respond to only one of them. That is what happened
here. Tucker answered the question about the availability of lethal
medications and ignored the question about the four physicians. That
was addressed by her colleague:

Steve Hopcraft, Compassion and Choices

And in terms of the physician question, of course, you know, we
haven't polled Montana physicians to see how each of them might feel
about this particular ruling. Now, that would be the only way to
know, and as Katherine was saying that these are very private of course
medical conversations that don't necessarily, um, become known to any
third party, especially ourselves. . .

Hopcraft did not have to poll the four plaintiff physicians to discover
their opinions; he had their affidavits, and, presumably, their contact
information.

Steve Hopcraft (continuing)

. . . We do know . . . that, broadly speaking, both the public and
physicians overwhelmingly support terminally ill patients having the
right to make this choice, to die with dignity.

Um, that's been confirmed by, uh, uh, polls of physicians which said
not only do they support it but that the overwhelming majority want it
for themselves, want this choice for themselves, were the physicians
themselves to be terminally ill.

Um, so we do know that the broad indicators are there, and we assume
that the majority of Montana physicians, like the majority of physicians
in all other states, do support this. That is why we're making the
appeal today. . .

Unidentified reporter

With those doctors and physicians not coming forward, you know, what,
I guess, what are the options? I mean, has the, um, you know,
there's uh, there's not many out there, but I guess you know four, um
(coughing). . . Excuse me, um you know, for the Massoula woman, you
know, what, uh, I guess, other than, you know, sitting in the hospice
care, what are her options out there?

The availability of the four plaintiff physicians was also recognized by
this reporter, and the question might have taken a slightly different turn
had he not been seized by a coughing fit. At any rate, by the end of
the news conference the first question had still not been answered.

Where were they?

Where were the four plaintiff physicians?

They all lived in
Missoula. They all believed that they had a professional obligation to
relieve suffering. They all believed that this professional obligation
justified assisted suicide. All four complained that they had been
prevented from assisting in suicide because of Montana's homicide statutes.
All four had gone to court to help to overturn those statutes so that they
could provide assisted suicide, so that no one would have to endure what
they called "a tortured death." And, at least as far as the public
record is concerned, not one has since modified his views.

Even after the April news conference, not one of them was
willing to give Janet Murdock the lethal prescription she was seeking.
Having joined Compassion and Choices in the battle to legalize assisted
suicide in Montana, they seem to have gone missing in action just when they
were most needed.

Why?

Exploring the options

Tucker and Hopcraft claimed that
polls show that American physicians overwhelmingly support assisted suicide,
and that Montana physicians probably felt the same way. Why, then, were they
unable to find a single Montana doctor willing to write a lethal
prescription for Janet Murdock?

The first obvious answer is that
physicians who support assisted suicide or euthanasia in polls are not
necessarily willing to provide it themselves.22 But
this was not the case with the four physician plaintiffs, and they were
certainly not unaware of the Baxter ruling. In fact, the lame
explanation offered by Compassion and Choices does not withstand scrutiny.

Ethical considerations

While the Montana Medical Association (MMA) initially took a "neutral" attitude on the
question,23 it adopted a policy against assisted
suicide five weeks before the news conference.24 This
was summed up afterward by the Association President.
Assisted suicide, he said, "is really against our ethics."25

If this did not change the views of the four plaintiff physicians, they
may, nonetheless, have felt constrained by the opinion of their colleagues.
The possibility was not explored at the press conference because Compassion
and Choices did not bring up the MMA's position.

Legal considerations

Tucker repeatedly emphasized that the Baxter ruling protects Montana
physicians who write lethal prescriptions for terminally ill, competent
patients. Her opinion on this point may be correct, at least with respect
to criminal prosecution. But there are other relevant opinions that Tucker
did not disclose.

Speaking in January, 2009, a spokesman for the Attorney
General of Montana pointed out that Washington and Oregon have defined the
key terms, "competent" and "terminally ill," but the Baxter ruling
does not. Hence, he said, "a doctor would be very concerned with what
those are before any type of prescription is written." And he would
not say whether or not the state would prosecute a physician who wrote a
lethal prescription for assisted suicide.26 This, of
course, is quite apart from the possibility that a physician might be sued
by family members.

Compassion and Choices insists that "comprehensive, candid information"
must be provided so that people can "make valid decisions and give informed
consent" for treatment.27 The principle is sound, but it
applies not only when patients are advised by physicians on a course of
treatment, but when physicians are advised by lawyers on a course of
conduct. Reporters, too, want "comprehensive, candid information."
Reporters and physicians received something less than this at the Compassion
and Choices news conference.

The point here is that the perspective of an activist lawyer anxious to
further her cause is different from that of a Montana physician weighing the
risks of involvement with assisted suicide. It is possible that the
four plaintiff physicians continued to be deterred by Montana's homicide
statutes.

Considerations of perspective

We do not know whether or not Janet Murdock consulted with any of the four
physician plaintiffs (or any doctor other than her personal physician)
before she died. Nor do we know the reason why her own physician would
not give her a prescription for lethal medication. Such consultations
are privileged.

However, we do know that, from such consultations,
physicians develop a personal understanding of patients and their
circumstances that guides them in providing treatment and care.
Moreover, physicians differ in sensitivity, experience, knowledge and world
views, so it would not be surprising to find that different physicians might
have different opinions about the same patient. Certainly, some
opinions might be sound and others erroneous, but even among a variety of
sound opinions there can be differences of depth and comprehensiveness.

Janet Murdock appears to have written her own obituary.28 In
describing her final months, it presents a marked contrast to the tone and
content of the Compassion and Choices news release that announced her death.29

It is possible that physicians personally or professionally acquainted
with the person and circumstances described in Janet Murdock's obituary
might develop a different view of her condition and prospects than that of
the author of the Compassion and Choices news release.

Let us suppose that one of the four physician plaintiffs did see her.
Even if the views on assisted suicide expressed in his affidavit remained
unaltered, and even if he was not concerned about the ethical opinions of
his colleagues or the possibility of being prosecuted or sued, it does not
follow that he would provide her with a lethal prescription. Depending
upon his assessment, he might - or he might not.

This point is often overlooked, but it is important. Even health
care workers willing to provide assisted suicide in some circumstances may,
for reasons of conscience, be unwilling to provide it in others.
Moreover, their willingness may change over time. This is true of
abortion,30 and there is no reason
to think that it is not also true of euthanasia, assisted suicide or other
morally controversial procedures.

Summing up

The mystery of the disappearing plaintiffs remains unresolved, but, as Sherlock
Holmes once remarked to Watson, the case has not been entirely devoid of
interest. A number of observations and conclusions are relevant to freedom of conscience in health
care.

With respect to the legalization of morally controversial services:

Extensive consultation with those who may be expected to provide the
services is required.

Failure to do so will almost certainly cause serious conflict
between the expected providers and those seeking the services.

Whole professions or classes of persons should not be conscripted
into a scheme for the provision of such services by judicial dictate or
legislative fiat.

In legislation or judicial decisions, the nature and content of "rights" claims must be clearly
established.

It is one thing to assert that one has a "right" to X, meaning
only that X is not prohibited by law.

It is quite another to claim that X is a right that imposes an
obligation to provide it on the state or another person or class of
persons.

Concerning the participation of physicians as plaintiffs in
litigation intended to legalize morally controversial services:

Having been persuaded to become a plaintiff on the basis of facts
alleged in a formal complaint, the physician may discover during the
hearings that some of the "facts" do not withstand scrutiny.

Successful litigation may yield a ruling that goes beyond what a
physician plaintiff anticipates, and perhaps what he intends.
Alternatively, it may set a precedent for cases that will lead to such
rulings.

Particularly when legalization is based upon a claim of rights, the
participation of physician plaintiffs may result in the conscription of
their profession, including colleagues who do not share their views.

This suggests that professional associations should intervene in
such cases to ensure that competing interests are recognized and
adequately protected.

Physician plaintiffs become public persons who should expect to be
publicly called to account for what they do or fail to do in relation to
the subject of litigation.

If this happens, they may find it impossible to explain their
actions because of the need to preserve confidentiality of communications with patients or
colleagues.

Finally, comparison of Janet Murdock's autobiographical obituary with the
news release from Compassion and Choices affords a sobering and poignant
reminder that dying from terminal illness can involve different kinds and
layers of emotion and attitudes, and complexity that does not lend itself to
sloganeering.

Notes

2.
"Barriers to abortion care endanger women's health by forcing women to
delay the procedure, compelling them to carry unwanted pregnancies to term,
and leading them to seek unsafe and illegal abortion services." NARAL
Pro-choice America Foundation, The Safety of Legal Abortion and the Hazards of Illegal Abortion (1
January, 2009) Accessed 2009-07-15.

3.
Bioethicist Carl Elliott, discussing the phenomenon of apotemnophilia,
reported that one woman had unsuccessfully tried to induce gangrene in her
legs, and was considering other self-inflicted injuries -like lying under a
train - that would necessitate amputation. In researching his article he
interviewed an amputee who had used a log splitter to precipitate eventual
surgical amputation. Elliott,
Carl, "A New Way to be Mad". The Atlantic Monthly, December,
2000.

11. "Life expectancy can be shortened with the Vascular Type of EDS due to
the possibility of organ and vessel rupture. Life expectancy is usually not
affected in the other types." Ehlers-Danlos National Foundation, What is EDS?Accessed 2009-07-15. See also Ehlers-Danlos
National Foundation, Vascular Urgent Information. Accessed 2009-07-15.

25. Person,
Daniel, "Doctors proving reluctant to assist in patient deaths." The Bozeman Daily Chronicle,
7 April, 2009. Accessed 2009-07-16. Strictly speaking,
Hopcraft's statement that Compassion and Choices did not know the opinion of
each Montana physician was accurate, but it seems disingenuous in
light of the official position of the Montana Medical Association.

30. Quebec Health Minister
Philippe:"'In Quebec, our doctors at the present time don't feel comfortable
doing abortions later than 22 weeks. From 20 to 22 weeks they're all done in
Sherbrooke, after that we still don't have the capacity to do them here.'" "Quebec
hopes to offer late-term abortions." CBC News, 10 September, 2004.
Accessed 2006-06-13. Commenting on the situation, Dr. Henry
Morgentaler, whose court case overturned all legal restrictions on abortion
in Canada, said, "We don't abort babies, we want to abort fetuses before
they become babies. . . Around 24 weeks I have ethical problems doing that."
"Quebec hopes to offer late term abortions." Canadian Press, 12
September, 2004. Accessed 2009-06-02. Morgentaler had initially
urged unrestricted legalization of abortion during the first 12 weeks of
pregnancy. In 1989 he was performing abortions up to 16 weeks, and by 1996
would perform abortions on women 18 weeks pregnant. Dunphy, Catherine,
Morgentaler: A Difficult Hero. Random House: Toronto, 1996, p. 62-64,
339.